Humbarger v. Carey

42 N.E. 749, 145 Ind. 324, 1896 Ind. LEXIS 74

• Court: Indiana Supreme Court
• Decided: January 22, 1896
• Docket: No. 17,518
• Status: Published

Opinions

Howard, J.

— This was a proceeding brought by a statement made by the appellee, under provisions of section 2715, Burns’ E. S. T894 (section 2545, E. S. 1881), to have the appellant, who is his grandfather, found to be a person of unsound mind and incapable of managing his own estate.

The cause was submitted to a jury, who, after hearing the evidence, the argument of counsel, and the instructions of the court, returned a verdict of unsoundness of mind against the appellant. From the judgment entered upon this verdict this appeal is prosecuted.

It is assigned as error that the court overruled appellant’s motion for a new trial.

Counsel for appellee insist that the assignment of error presents no question for our consideration, for the reason that the bill of exceptions, as they say, is not properly authenticated.

There is a record entry, preceding what purports to be a bill of exceptions, to the effect that on the 12th day of January, 1895, the appellant filed his bill of exceptions, containing the longhand manuscript of the evidence. This entry closes with the words: “which bill of exceptions is duly signed by the judge, is filed, and is in these words, to-wit:”

But a record entry immediately following the bill recites that the appellant, “now on the 12th day of January, 1895, presents this, his bill of exceptions, to the Hon. W. L. Penfield, judge of the said court, for his examination, approval, and official signature, and prays the court that the same may be signed, sealed, and made a part of the record.” This entry is followed by the signature of the 'judge.

There is a further record entry, showing that on the 12th day of January, 1895, and within the time allowed to prepare and file a bill of exceptions, the appellant “presented to the judge of said court the said longhand manuscript, and prayed that the same be incorporated into and made a part of this, his bill of exceptions, and that the said bill be signed and made a part of the record in this cause, which is here now done, on this 21st day of January, 1895.” This is also signed by the judge.

Finally follows the clerk’s certificate, that “the above and foregoing transcript contains true and complete copies of all the papers and entries in said cause. I further certify that on the 12th day of January, 1895, the official reporter who took down the evidence, filed in my office his longhand manuscript thereof, which is the same manuscript of the evidence incorporated in the bill of exceptions, and made a part of the foregoing transcript.

“In witness whereof, I hereunto set my hand, and affix the seal of said court, at Auburn, this 12th day of January, 1895. D. D. Moody, Clerk,”

The two record entries immediately preceding and following the bill are in conflict. That preceding the bill states that the bill was signed by the judge and filed on the 12th day of January. The entry immediately following the bill states- that on January 12, the bill was presented to the judge for his examination, with a prayer that it might be signed by him and made a part of the record.

The third record entry, being the second following the bill, shows that the longhand manuscript was incorporated into the bill of exceptions, and the- bill signed by the- judge on the 21st day of January.

The clerk’s certificate, finally, shows that the longhand manuscript was filed- in his office on the 12th day of January; but does not state when the bill of exceptions was filed. This certificate of the clerk, which is- the only one in the record, is dated January the 12th, nine days before the longhand manuscript was incorporated into the bill of exceptions, and before the bill itself wTas signed by the judge, as shown by the last record entry signed by the judge.

These entries and certificates, to say the least, leave the record in a state of confusion. The two entries signed by the judge are consistent. The first shows thát the bill was presented to him on January 12, 1895, and the second shows that he signed the bill on January 21,1895. This would seem also to show that the entry preceding the bill, and which states that the bill was signed by the judge and filed on January 12, is erroneous; and that the bill was simply presented to the judge on that day, but not signed until the 21st. The certificate of the clerk, which is dated January 12, was evidently premature, being made before the bill of exceptions was signed by the judge. It wall hardly be said that the judge could incorporate the longhand manuscript into the bill of exceptions, and sign and file the latter after the record had been made up and certified to this court by the clerk.

It is apparent that the bill of exceptions is not properly authenticated. No question is, therefore, presented for our consideration on the assignment of error.

The judgment is affirmed.